Erick Zanetich, on behalf of himself and those similarly situated v. WAL-MART STORES EAST, INC., doing business as Walmart Inc.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 23-1996
____________
ERICK ZANETICH, on behalf of himself and those
similarly situated,
Appellant
v.
WAL-MART STORES EAST, INC., doing business
as Walmart Inc.; SAM’S EAST INC., doing business
as Sam’s Club Fulfillment Center
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1:22-cv-05387)
District Judge: Honorable Christine P. O’Hearn
____________
Argued: March 6, 2024
____________
Before: JORDAN, PHIPPS, and FREEMAN, Circuit Judges
(Filed: December 9, 2024)

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Justin L. Swidler [ARGUED]
SWARTZ SWIDLER
9 Tanner Street
Suite 101
Haddonfield, NJ 08033
Counsel for Appellant
Misha Tseytlin [ARGUED]
TROUTMAN PEPPER
227 W Monroe Street
Suite 3900
Chicago, IL 60606
Counsel for Appellees
___________
OPINION OF THE COURT
___________
PHIPPS, Circuit Judge.
In 2021, as part of its efforts to legalize and regulate
marijuana use “in a similar fashion to the regulation of alcohol
for adults,” New Jersey enacted the Cannabis Regulatory,
Enforcement Assistance, and Marketplace Modernization Act
– referred to herein as ‘CREAMMA.’ N.J. Pub. L. 2021, ch. 16
(amending N.J. Stat. §§ 18A, 24, 40, and 54). One of the
provisions of CREAMMA prohibits employers from refusing
to hire a job applicant for the use of cannabis. See N.J. Stat.
§ 24:6I-52(a)(1). CREAMMA, however, does not expressly
provide a private remedy for redressing employment
discrimination against cannabis users. And, in 2022, a retailer
in New Jersey rescinded an offer of employment to a job
applicant because he tested positive for cannabis.

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3
Claiming that the retailer’s decision violated CREAMMA,
that job applicant initiated this two-count lawsuit individually
and on behalf of a putative class. The first count sought redress
on the theory that CREAMMA implies a remedy for violations
of its employment protections. The second count pursued a
claim for pre-employment discrimination in violation of public
policy. The retailer moved to dismiss both counts, and the
District Court granted that motion on the grounds that neither
presented a legally viable claim.
In this appeal, the job applicant challenges that ruling and
alternatively seeks certification to the New Jersey Supreme
Court of the state-law issues underlying both claims. On de
novo review of the District Court’s decision, we will affirm the
judgment of the District Court, and exercising our discretion,
we will not certify either question.
I. STATUTORY BACKGROUND
At least as far back as 1933, New Jersey criminalized the
use and possession of cannabis. See N.J. Pub. L. No. ch. 186,
arts. I–III (1933). That prohibition began to be relaxed in 2010
with the passage of legislation that exempted the medical use
of cannabis from criminal liability under New Jersey law. See
N.J. Pub. L. No. 2009, ch. 307 (codified at N.J. Stat. §§ 24:6I-
1–24:6I-16) (permitting limited medical use of cannabis for
“debilitating medical conditions”). In 2019, the New Jersey
Legislature broadened the medical-use exception and created a
state agency – the Cannabis Regulatory Commission – to
oversee the licensing and regulation of medical marijuana
distributors. See N.J. Pub. L. No. 2019, ch. 153 (codified as
amended at N.J. Stat. §§ 24:6I-1–24:6I-30, 26:2H-12.86,
30:6D5-b, 45:1-45.1, 45:9-27.16, 45:9-27.19, 45:11-49,
52:13D-13, 52:13D-17.2, 2C:35-18, 18A:40-12.22). Then, in
November 2020, through a ballot initiative, Garden State

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voters, by a two-to-one margin,1 approved an amendment to
the New Jersey Constitution that legalized and regulated the
possession and use of marijuana by persons over age 21.
N.J. Const. art. IV, § VII, ¶ 13 (effective Jan. 31, 2021). But
cf. 21 U.S.C. § 812 (listing “marihuana” as a Schedule I
controlled substance); Schedules of Controlled Substances:
Rescheduling of Marijuana, 89 Fed. Reg. 44597-01, 44601
(proposed May 21, 2024) (to be codified at 21 C.F.R. pt. 1308)
(proposing a transfer of marijuana from Schedule I to
Schedule III).
Within a month of the effective date of that amendment, on
February 22, 2021, New Jersey enacted CREAMMA, which
provides a statutory grounding for the regulation of cannabis
in the state. See N.J. Pub. L. No. 2021, ch. 16. The New Jersey
Legislature announced and codified three broad purposes of
CREAMMA:
1. to adopt a new approach to our
marijuana policies by controlling
and legalizing a form of marijuana,
to be referred to as cannabis, in a
similar fashion to the regulation of
alcohol for adults . . .
2. [to] prevent the sale or distribution
of cannabis to persons under 21
years of age . . . [and]
3. to eliminate the problems caused
by the unregulated manufacturing,
distribution, and use of illegal
marijuana within New Jersey[.]
1 Official Results, New Jersey General Election (Nov. 3, 2020),
Public Question No. 1: Constitutional Amendment to Legalize
Marijuana [https://perma.cc/UZL6-XURQ].

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N.J. Stat. § 24:6I-32(a)–(c).
The New Jersey Legislature also made a dozen factual
findings in support of CREAMMA. See id. § 24:6I-32(d)–(o).
Several of those related to law enforcement. For instance, the
Legislature found that CREAMMA “will divert funds from
marijuana sales from going to illegal enterprises, gangs, and
cartels,” id. § 24:6I-32(d), and that “[c]ontrolling and
legalizing cannabis for adults in a similar fashion to alcohol
will strike a blow at the illegal enterprises that profit from New
Jersey’s current, unregulated illegal marijuana market,” id.
§ 24:6I-32(h).2 Other findings addressed public health
concerns, such as the conclusion that “[a] controlled system of
cannabis manufacturing, distribution, and sales must be
designed in a way that enhances public health and minimizes
harm to New Jersey communities and families.” Id. § 24:6I-
32(l).3 In a similar vein, other findings focused on the
2 Several other findings also related to law enforcement,
specifically: that “New Jersey spends approximately $127
million per year on marijuana possession enforcement costs,”
N.J. Stat. § 24:6I-32(f); that “[c]ontrolling and legalizing
cannabis for adults in a similar fashion to alcohol will free up
precious resources to allow our criminal justice system to focus
on serious criminal activities and public safety issues,” id.
§ 24:6I-32(g); that “Black New Jerseyans are nearly three
times more likely to be arrested for marijuana possession than
white New Jerseyans, despite similar usage rates,” id. § 24:6I-
32(e); and that “New Jersey cannot afford to sacrifice public
safety and individuals’ civil rights by continuing its ineffective
and wasteful past marijuana enforcement policies,” id. § 24:6I-
32(o).
3 Other public health findings related to increased attention to
addressing substance use disorder. See N.J. Stat. § 24:6I-32(i)
(“New Jersey must strengthen its support for evidence-based,
drug use prevention programs that work to educate New
Jerseyans, particularly young New Jerseyans, about the harms

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6
importance of preventing underage cannabis use. See id.
§ 24:6I-32(m) (finding that “[t]he legalized cannabis
marketplace in New Jersey must be regulated so as to prevent
persons younger than 21 years of age from accessing or
purchasing cannabis”); id. § 24:6I-32(k) (reasoning that
“[c]ontrolling and regulating the manufacturing, distribution,
and sales of cannabis will strengthen our ability to keep it along
with illegal marijuana away from minors”). Finally, one of the
factual findings related to the consequences of arrests for
marijuana, including the negative effects on future
employment:
A marijuana arrest in New Jersey can have a
debilitating impact on a person’s future,
including consequences for one’s job prospects,
housing access, financial health, familial
integrity, immigration status, and educational
opportunities . . . .
Id. § 24:6I-32(n).
In furtherance of those purposes and findings, CREAMMA
delegated significant authority to the Cannabis Regulatory
Commission. It conferred jurisdiction on the Commission over
“any person who buys, sells, cultivates, produces,
manufactures, transports, or delivers any cannabis or cannabis
items within this State.” Id. § 24:6I-34(a). Under
CREAMMA, the Commission also may “exercise all powers
incidental, convenient, or necessary to enable the Commission
to administer or carry out the provisions of [CREAMMA].” Id.
§ 24:6I-34(b)(5). And the Commission is to “oversee the
development, regulation, and enforcement of activities
of substance use disorder.”); id. § 24:6I-32(j) (“New Jersey
must enhance State-supported programming that provides
appropriate, evidence-based treatment for those who suffer
from the illness of substance use disorder.”).

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associated with the personal use of cannabis.” Id. § 24:6I-
24(a)(2).
Also, as part of its overall approach to cannabis regulation,
CREAMMA prohibited two forms of employment
discrimination. First, it outlawed employment discrimination
based on a person’s use or non-use of cannabis:
No employer shall refuse to hire or employ any
person or shall discharge from employment or
take any adverse action against any employee
with respect to compensation, terms, conditions,
or other privileges of employment because that
person does or does not smoke, vape, aerosolize
or otherwise use cannabis items . . . .
Id. § 24:6I-52(a)(1). Second, it protected employees from
adverse employment actions based solely on a positive
cannabis drug test:
[A]n employee shall not be subject to any
adverse action by an employer solely due to the
presence of cannabinoid metabolites in the
employee’s bodily fluid from engaging in
conduct permitted under [CREAMMA].
Id.
CREAMMA also set express bounds for those employment
protections. They do not prevent employers from
“maintain[ing] a drug- and alcohol-free workplace.” Id.
§ 24:6I-52(b)(1)(a). Nor do those protections “require an
employer to permit or accommodate the use, consumption,
being under the influence, possession, transfer, display,
transportation, sale, or growth of cannabis or cannabis items in
the workplace.” Id. As a further limitation, CREAMMA made
explicit that its cannabis-related provisions should not be

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construed to “amend or affect in any way any State . . . law
pertaining to employment matters.” Id. § 24:6I-55(a).
The Cannabis Regulatory Commission has exercised some,
but seemingly not the full extent, of its authority with respect
to CREAMMA’s employment protections. It has promulgated
regulations4 and issued guidance documents.5 One of those
guidance documents, issued in September 2022 to “all
employers,” explained that a positive drug test when combined
with evidence of impairment may justify an adverse
employment action:
A scientifically reliable objective testing method
that indicates the presence of cannabinoid
metabolites in the employee’s bodily fluid alone
is insufficient to support an adverse employment
action. However, such a test combined with
evidence-based documentation of physical signs
or other evidence of impairment during an
employee’s prescribed work hours may be
sufficient to support an adverse employment
action.
N.J. Cannabis Regul. Comm’n, Guidance on “Workplace
Impairment” 1 (2022) [https://perma.cc/25WT-DZWP]. The
Commission, however, has not taken any formal enforcement
action against employers who violate CREAMMA’s
employment protections.
4 See, e.g., N.J. Admin. Code §§ 17:30-1.1–17:30-20.10 (2023)
(“Personal Use Cannabis Rules”).
5 See, e.g., N.J. Cannabis Regul. Comm’n, Manufacturing and
Retailing of Ingestible Cannabis Products (2023)
[https://perma.cc/QV2D-G8FV].

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II. FACTUAL BACKGROUND
(AS ALLEGED IN THE COMPLAINT)
In January 2022, less than a year after the enactment of
CREAMMA, New Jersey citizen Erick Zanetich applied for an
asset protection position at a Walmart facility in Swedesboro,
New Jersey. A week later, he was offered a job there – subject
to the condition that he take and pass a drug test. That
condition reflected a corporate policy – in effect even after
CREAMMA – under which all job applicants and employees
were ineligible for future employment upon testing positive for
drugs. Zanetich tested positive for cannabis, and his job offer
was rescinded.
III. PROCEDURAL HISTORY
Prompted by the rescission of his job offer, Zanetich filed
a two-count putative class-action complaint in the Superior
Court of Gloucester County against Walmart and one of its
affiliated corporations. For relief, Zanetich sought back pay,
front pay, punitive damages, and an injunction ordering
rescission of the corporate drug policy among other remedies,
but, as allowed by New Jersey law,6 his complaint did not
demand a sum certain. Walmart and the affiliated corporation
– neither of which has citizenship in New Jersey7 – removed
the case to federal court, invoking the District Court’s diversity
6 See N.J. Ct. R. 4:5-2 (“If unliquidated money damages are
claimed in any court, other than the Special Civil Part, the
pleading shall demand damages generally without specifying
the amount.”).
7 The entity doing business as Walmart is Walmart Stores East,
LLC, which has as its sole member Walmart, Inc., a Delaware
corporation with a principal place of business in Bentonville,
Arkansas. The affiliated corporation, Sam’s East, Inc., is a
citizen of Arkansas by incorporation and by its principal place
of business. For purposes of this opinion, they are both
referred to as ‘Walmart.’

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jurisdiction on the grounds that Zanetich was not a citizen of
the same states as Walmart and the amount in controversy
exceeded $75,000. See 28 U.S.C. §§ 1332(a)(1), 1441(a),
1446(a), (c). Neither Zanetich nor the District Court contested
the plausibility of Walmart’s statements about the amount in
controversy, so no evidence-based showing was required to
perfect removal, and the District Court properly exercised
subject matter jurisdiction over this case. See Dart Cherokee
Basin Operating Co. v. Owens, 574 U.S. 81, 89 (2014) (“[A]s
specified in [28 U.S.C.] § 1446(a), a defendant’s notice of
removal need include only a plausible allegation that the
amount in controversy exceeds the jurisdictional threshold.
Evidence establishing the amount is required by [28 U.S.C.]
§ 1446(c)(2)(B) only when the plaintiff contests, or the court
questions, the defendant’s allegation.”); cf. 14B Charles Alan
Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 3703 (5th ed. 2023) (“A removing
defendant who seeks to establish that the amount in
controversy is greater than the jurisdictional requirement does
not automatically concede that it is recoverable.”).
Although both of Zanetich’s claims rest on the same
underlying fact – the rescission of his job offer based on his
positive marijuana test – they rely on different legal theories.
Count I depends on the legal conclusion that CREAMMA
contains an implied remedy for violations of its pre-
employment protections. Count II hinges on the applicability
of New Jersey’s public policy employment exception to the
rescission of a job offer based on a positive drug test for
cannabis.
Walmart moved to dismiss both counts for a failure to state
a claim upon which relief can be granted by arguing that
neither legal theory was viable. See Fed. R. Civ. P. 12(b)(6).
Its arguments persuaded the District Court, which granted the
motion and dismissed the case. See Zanetich v. Wal-Mart

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Stores E., Inc., 2023 WL 3644813, at *4–10 (D.N.J. May 25,
2023).8
Through a timely notice of appeal of that final decision,
Zanetich invoked this Court’s appellate jurisdiction, see
28 U.S.C. § 1291, and he now contends that the District Court
erred as a matter of law in dismissing both claims.
IV. DISCUSSION
A Rule 12(b)(6) motion tests the legal sufficiency of a
complaint under the plausibility pleading standard. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Kedra v.
Schroeter, 876 F.3d 424, 440–41 (3d Cir. 2017). In its motion
to dismiss, Walmart did not argue that any of Zanetich’s
allegations should be disregarded as conclusory or speculative,
so they are taken as true and all reasonable factual inferences
are drawn in Zanetich’s favor. See Lutz v. Portfolio Recovery
Assocs., LLC, 49 F.4th 323, 327–28 (3d Cir. 2022). But even
under that favorable reading of the complaint, Walmart
contends that Zanetich does not state a claim for relief as a
matter of law. And if there is no version of facts under which
Zanetich could state a claim, then his complaint necessarily
fails the plausibility standard. Compare Conley v. Gibson,
355 U.S. 41, 45–46 (1957), abrogated by Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556–57 (2007), with Iqbal, 556 U.S.
at 678, and Twombly, 50 U.S. at 556–57.
8 Although the District Court’s order did not indicate whether
the dismissal was with or without prejudice, under the “default
rule” for involuntary dismissals it was with prejudice, Papera
v. Pa. Quarried Bluestone Co., 948 F.3d 607, 610 (3d Cir.
2020) (citing Fed. R. Civ. P. 41(b)).

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A. Count I Was Properly Dismissed Because
CREAMMA Does Not Imply a Remedy for
Job Applicants Who Fail Drug Tests for
Cannabis.
To create a private cause of action, a law must provide not
only a private right but also a private remedy. See Alexander
v. Sandoval, 532 U.S. 275, 286–87 (2001); see also Gonzaga
Univ. v. Doe, 536 U.S. 273, 290 (2002) (declining to infer a
private cause of action from a statute that did not contain
“rights-creating language”). The dividing line between those
two components of a private cause of action has not always
been well defined. At the beginning of the Republic, rights
were understood to necessarily imply corresponding remedies
under the “general and indisputable rule, that where there is a
legal right, there is also a legal remedy by suit or action at law,
whenever that right is invaded.” Marbury v. Madison, 5 U.S.
(1 Cranch) 137, 163 (1803) (quoting 3 William Blackstone,
Commentaries *23); see also Middlesex Cnty. Sewerage Auth.
v. Nat’l Sea Clammers Ass’n, 453 U.S. 1, 24 (1981)
(Stevens, J., concurring in judgment) (“Since the earliest days
of the common law, it has been the business of courts to fashion
remedies for wrongs.”). Under that view, it would be “a
monstrous absurdity in a well organized goverment [sic], [if]
there should be no remedy, although a clear and undeniable
right should be shown to exist.” Kendall v. United States ex
rel. Stokes, 37 U.S. 524, 624 (1838). Thus, when a violation
of the statutory right caused an injury to a member of the class
“for whose especial benefit the statute was enacted, the right to
recover the damages from the party in default [was] implied.”
Tex. & Pac. Ry. Co. v. Rigsby, 241 U.S. 33, 39 (1916). This
view prevailed even into the mid-twentieth century, extending
beyond implying a damages remedy to allow an inference of
“any available remedy” from a private statutory right. Bell v.
Hood, 327 U.S. 678, 684 (1946); see also J. I. Case Co. v.
Borak, 377 U.S. 426, 433 (1964) (“It is for the federal courts
‘to adjust their remedies so as to grant the necessary relief’
where federally secured rights are invaded.” (quoting Bell,
327 U.S. at 684)).

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But as statutes became more complex and allowed for
enforcement by administrative agencies, the implication of a
private remedy for a violation of a statutory right became less
automatic and more nuanced. See Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 377 (1982); see
also Middlesex Cnty., 453 U.S. at 24–25 (Stevens, J.,
concurring in judgment). For instance, the Supreme Court
resisted implying remedies for “general regulatory
prohibition[s] enacted for the benefit of the public at large.”
Merrill Lynch, 456 U.S. at 376. It also declined to imply a
remedy from a statutory right when there were already
“elaborate enforcement provisions” in place. Middlesex Cnty.,
453 U.S. at 14. “[T]he far better course,” the Supreme Court
remarked, was for Congress to expressly identify a private
remedy or the lack thereof in rights-creating statutes. Cannon
v. Univ. of Chi., 441 U.S. 677, 717 (1979).
Even so, private remedies for statutory rights could still be
implied – they just could no longer be presumed. That new
rule came about in Cort v. Ash, 422 U.S. 66 (1975), a case
originating from this Circuit. There, the Supreme Court –
persuaded by the dissenting opinion of Judge Aldisert9 –
refused to presume that a private remedy should be implied for
violations of federal criminal law. Id. at 78–79; see also
Middlesex Cnty., 453 U.S. at 25 (Stevens, J., concurring in
judgment) (explaining that Cort “cut back on the simple
common-law presumption” that private remedies were
implied). In place of that presumption, the Supreme Court
9 See Cort, 422 U.S. at 79 (“Every criminal statute is designed
to protect some individual, public, or social interest . . . . To
find an implied civil cause of action for the plaintiff in this case
is to find an implied civil right of action for every individual,
social, or public interest which might be invaded by violation
of any criminal statute. To do this is to conclude that Congress
intended to enact a civil code companion to the criminal code.”
(quoting Ash v. Cort, 496 F.2d 416, 428–29 (3d Cir. 1974)
(Aldisert, J. dissenting) (ellipsis in original))).

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announced a four-factor test for evaluating whether a private
remedy could be implied from a federal statutory right. Cort,
422 U.S. at 78. The first and most important factor examined
whether the statute provided a special benefit to a particular
class of persons. Id.10 The other factors evaluated the specific
legislative intent for a remedy, the statute’s broad purposes,
and federalism concerns. Altogether, the Cort test consisted of
the following four considerations:
(1) whether the plaintiff is “one of the
class for whose especial benefit
the statute was enacted”;
(2) whether there is “any indication
of legislative intent, explicit or
implicit, either to create such a
remedy or to deny one”;
(3) whether it is “consistent with the
underlying purposes of the
legislative scheme to imply such a
remedy for the plaintiff”; and
(4) whether the cause of action has
been “traditionally relegated to
state law, in an area basically the
concern of the States, so that it
would be inappropriate to infer a
cause of action based solely on
federal law.”
10 See also Cannon, 441 U.S. at 690 n.13 (“Not surprisingly,
the right- or duty-creating language of the statute” – “where the
language of the statute explicitly conferred a right directly on
a class of persons that included the plaintiff in the case” – “has
generally been the most accurate indicator of the propriety of
implication of a cause of action.”).

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Id. (quoting in the first instance Rigsby, 241 U.S. at 39).
Applying that test, the Supreme Court refused to imply a
private remedy for a violation of a federal criminal statute. Id.
at 80–85.
The Cort test was not particularly long-lived at the federal
level. As early as 1988, one Justice believed that it had been
effectively overruled. See Thompson v. Thompson, 484 U.S.
174, 189 (1988) (Scalia, J., concurring in judgment). And in
2001, the Supreme Court more formally narrowed the inquiry
for implying a private remedy to an analysis of statutory text
and structure. See Sandoval, 532 U.S. at 288. It reaffirmed
that text-and-structure approach a year later. See Gonzaga,
536 U.S. at 286. And by 2007, this Court had observed that
“[a]lthough Cort has never been formally overruled,
subsequent decisions have altered it virtually beyond
recognition.” Wisniewski v. Rodale, Inc., 510 F.3d 294, 299
(3d Cir. 2007).
Nevertheless, while the Cort test was in vogue, the New
Jersey Supreme Court addressed a question similar to the one
presented in Cort: whether a private remedy could be implied
from a penal law. See In re State Comm’n of Investigation,
527 A.2d 851, 852–54 (N.J. 1987). To resolve that issue, the
New Jersey Supreme Court used the Cort test as a guide, and
it adopted a modified version of that test for implying a remedy
from a state statutory right. Id. at 854. Using that modified
Cort test – consisting of the first three factors, but not the
fourth, as the identified federalism concerns are not pertinent
to a state statute – the New Jersey Supreme Court reached a
similar conclusion to the one in Cort: a private remedy could
not be implied from the penal statute. Id. at 854–56. Thus, like
the United States Supreme Court, New Jersey courts are
“reluctant to infer a statutory private right of action where the
[New Jersey] Legislature has not expressly provided for such
action.” R.J. Gaydos Ins. Agency, Inc. v. Nat’l Consumer Inc.,
773 A.2d 1132, 1142 (N.J. 2001). But, unlike the United States
Supreme Court, the New Jersey Supreme Court has not

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replaced its modified Cort test with a text-and-structure
approach. See Jarrell v. Kaul, 123 A.3d 1022, 1029
(N.J. 2015); R.J. Gaydos, 773 A.2d at 1143; see also In re State
Comm’n of Investigation, 527 A.2d at 854.
Despite these meaningful jurisprudential differences, a
federal court sitting in diversity is obligated to apply state
substantive law, as determined by the choice-of-law rules of
the forum state. See Klaxon Co. v. Stentor Elec. Mfg. Co.,
313 U.S. 487, 494 (1941) (holding that “in diversity cases the
federal courts must follow conflict of laws rules prevailing in
the states in which they sit”); SodexoMAGIC, LLC v. Drexel
Univ., 24 F.4th 183, 204 (3d Cir. 2022). And with New Jersey
as the forum state, there is no dispute that its choice-of-law
rules would require the application of New Jersey substantive
law – as opposed to federal law or the substantive law of either
Delaware or Arkansas, where Walmart has citizenship.11
Under an assessment of New Jersey substantive law based on
a prediction of how its Supreme Court would rule, see Repola
v. Morback Indus., Inc., 934 F.2d 483, 489 (3d Cir. 1991), it is
appropriate to apply New Jersey’s modified Cort test to
determine whether a private remedy may be inferred from the
rights that CREAMMA established, see Borough of Longport
v. Netflix, Inc., 94 F.4th 303, 307 (3d Cir. 2024) (applying the
modified Cort test to ascertain whether the New Jersey Cable
Television Act implies a private remedy). That predictive
11 Even under a formal choice-of-law analysis, when the
conduct and the injury occur in the same state, New Jersey
presumes that the substantive law of that state will govern. See
P.V. ex rel. T.V. v. Camp Jaycee, 962 A.2d 453, 460
(N.J. 2008); see also Calabotta v. Phibro Animal Health Corp.,
213 A.3d 210, 218–19, 225–26 (N.J. Super. Ct. App.
Div. 2019); Restatement (Second) of Conflict of Laws
§ 146(d) (Am. Law Inst. 1971). Here, where both the conduct
and the injury occurred in New Jersey, there is no reason to
consider rebutting the presumptive application of New Jersey
substantive law.

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17
judgment is informed, in part, by federal caselaw interpreting
the first three Cort factors because the New Jersey Supreme
Court and New Jersey intermediate appellate courts have relied
on federal cases in applying the modified Cort test. See In re
State Comm’n of Investigation, 527 A.2d at 854 (relying on
federal cases in applying New Jersey’s modified Cort test);
Miller v. Zoby, 595 A.2d 1104, 1108–09 (N.J. Super. Ct. App.
Div. 1991) (same).
Applying these principles to this case, Zanetich will have
an actionable claim under his first count if, under the modified
Cort test, CREAMMA implies a private remedy.
1. The First Cort Factor: Conferral of a
Special Benefit on a Particular Class
To satisfy the first Cort factor – conferral of a special
benefit on a particular class – a statute must, by the
“unmistakabl[e] focus” of its own text, benefit a “particular
class . . . whose welfare [the legislature] intended to further.”
California v. Sierra Club, 451 U.S. 287, 294 (1981); see also
Am. Tel. & Tel. Co. v. M/V Cape Fear, 967 F.2d 864, 870
(3d Cir. 1992) (declining to imply a right of action because
“the statute [did] not clearly and exclusively articulate a right
in that particular class of plaintiff”). A statute that functions as
a “general regulatory scheme” for the “benefit [of] the public
at large” does not confer a special benefit on a particular class.
Sierra Club, 451 U.S. at 297–98; see also Cort, 422 U.S. at 79–
80 (holding that “a bare criminal statute[] with absolutely no
indication that civil enforcement of any kind was available to
anyone” did not confer a special benefit on any particular
class); In re State Comm’n of Investigation, 527 A.2d at 853–
56 (holding that a statute criminalizing breaches of
confidentiality obligations in law enforcement investigations
did not confer a special benefit upon the subjects of the
investigation whose information was disclosed in violation of
the confidentiality provisions). Likewise, a statute that
provides a benefit – even one of great value – to some
incidental, unidentified class does not meet the special-benefit

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18
standard. See Sierra Club, 451 U.S. at 294 (explaining that
interpreting “especial beneficiary” to mean “any person who
would be ‘especially harmed’ by” a violation of the act would
“make[] this factor meaningless”); Cort, 422 U.S. at 80
(rejecting an implied remedy when the protection of a
particular class was a “subsidiary purpose” of the legislation).
And even a statute that benefits a particular class does not
confer a special benefit when the benefit to that class is
subordinate to the one provided to another readily defined
class. See Rauch v. United Instruments, Inc., 548 F.2d 452,
458–59 (3d Cir. 1976) (refusing to imply a statutory remedy
for aircraft owners because the “principal beneficiaries” of the
statute were air travelers and airplane crews – not aircraft
owners); R.J. Gaydos, 773 A.2d at 1147 (holding that despite
a textual basis for identifying insurance agents as beneficiaries,
they were “not members of the class for whose special benefit
[the statute] was enacted” because the purpose of the statute
was “to benefit New Jersey auto insureds, not insurance
agents”); see also Jarrell, 123 A.3d at 1029–30 (holding that a
state statute requiring physicians to maintain malpractice
insurance did not confer a special benefit on patients injured
by noncompliant physicians).
Applied here, Zanetich must demonstrate that CREAMMA
specially benefits job applicants like himself who test positive
for cannabis use. But CREAMMA does not do that.
CREAMMA’s first employment protection prohibits
adverse employment actions because a person “does or does
not smoke, vape, aerosolize or otherwise use cannabis items.”
N.J. Stat. § 24:6I-52(a)(1) (emphasis added). By protecting
both users and non-users of cannabis, this provision sweeps
very broadly, as every member of the public is either a cannabis
user or a cannabis non-user. And without an unmistakable
textual focus on cannabis users in particular, this provision
does not confer a special benefit on any particular class. See

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19
Cannon, 441 U.S. at 690–64; see also In re State Comm’n of
Investigation, 527 A.2d at 854.12
CREAMMA’s second protection shields employees from
adverse employment actions based solely on a positive drug
test for cannabis. See N.J. Stat. § 24:6I-52(a)(1). While that
provision may have an unmistakable textual focus on
employees with positive cannabis test results, the clause by its
own terms applies only to current employees – not prospective
employees. So, as a job applicant, Zanetich is outside of the
particular class that this protection may specially benefit.
For these reasons, CREAMMA does not confer a special
benefit on job applicants who test positive for cannabis, and
the first, most important Cort factor is not met here.
2. The Second Cort Factor: Legislative
Intent to Provide a Remedy
The second Cort factor examines the explicit or implicit
legislative intent to provide a remedy. See Cort, 422 U.S. at
78. The Cort test was formulated at a time when legislative
history was among the touchstones of reading statutes. See
Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 373–74 (2012). And in applying
its second factor, the Supreme Court considered primarily
legislative history. See, e.g., Merrill Lynch, 456 U.S. at 377;
Cannon, 441 U.S. at 694. Here, however, Zanetich identifies
no legislative history for CREAMMA that indicates an
12 Our dissenting colleague argues that the first Cort factor is
nonetheless satisfied because this provision benefits only the
employable public, not the entire public. But even that
distinction still leaves a very broad class – all legally
employable persons – such that this provision constitutes a
general regulatory scheme and not legislation with an
unmistakable focus on a particular class. See Jarrell, 123 A.3d
at 1029–30; R.J. Gaydos, 773 A.2d at 1147.

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intention to provide a private remedy for a prospective
employer’s failure to hire a job applicant based on a positive
drug test for cannabis. At most, the legislative history states
that “an employer would not be permitted to refuse to hire or
employ a person, or discharge or take any adverse action
against an employee because that person or employee does or
does not use cannabis items.” Appropriations Committee
Report on A.21, Nov. 19, 2020, at 20 [https://perma.cc/63Z6-
R8VQ]. But that statement addresses the private rights
conferred by CREAMMA; it does not announce a legislative
intention to provide a private remedy for their violation.
The second Cort factor also allows for consideration of
implied legislative intent. See Cort, 422 U.S. at 78. Zanetich
contends that the lack of an alternative mechanism for
enforcement of CREAMMA’s employment protections
implies a legislative intent to provide remedy for those rights.
That argument fails on several levels.
Zanetich’s assertion overreads New Jersey precedent. It is
a near certainty that New Jersey courts will not regard the
second Cort factor as satisfied when there is an alternative
enforcement mechanism. See, e.g., R.J. Gaydos, 773 A.2d at
1148. But the inverse is not equally true. Rather, the absence
of an alternative enforcement mechanism does little to suggest
a legislative intention to provide a private remedy. It could be
that New Jersey simply did not intend to provide one. Applied
here, where there already two spheres of silence with respect
to a private remedy (the lack of a statutory remedial provision
and the absence of express legislative history), the additional
omission of an alternative enforcement mechanism for
CREAMMA’s employment protections does little, if anything,
to establish a legislative intent to create a private remedy.
Rather, the lack of an express statutory remedial provision and
the absence of legislative history are consistent with the
conclusion that the New Jersey Legislature did not intend to
create a private remedy.

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Zanetich’s argument loses additional traction because
CREAMMA’s employment protections may be enforced by
alternative means. It is true that the provision Zanetich
identifies, which grants the Cannabis Regulatory Commission
jurisdiction over “any person who buys, sells, cultivates,
produces, manufactures, transports, or delivers any cannabis or
cannabis items within [New Jersey],” N.J. Stat. § 24:6I-34a,
does not seem to extend to all employers. But that provision is
not the sole source of the Commission’s authority. Other
provisions grant the Commission the power to “oversee[] the
development, regulation, and enforcement of activities
associated with the personal use of cannabis,” id. § 24:6I-
34(d)(1)(a), and “[t]o investigate and aid in the prosecution of
every violation of the statutory laws of this State relating to
cannabis and cannabis items and to cooperate in the
prosecution of offenders before any State court of competent
jurisdiction,” id. § 24:6I-34(b)(3). Through those other
provisions, the Commission’s jurisdiction extends to cannabis-
related employment matters. Consistent with that
understanding, the Commission issued its guidance document
about cannabis-related employment actions to “all employers.”
N.J. Cannabis Regul. Comm’n, Guidance on “Workplace
Impairment” (2022) [https://perma.cc/25WT-DZWP].
Zanetich emphasizes the lack of employment-related
enforcement actions by the Commission, but that does little to
satisfy the second Cort factor. Enforcement decisions are
discretionary, see Heckler v. Chaney, 470 U.S. 821, 838
(1985), and the absence of enforcement activity against
employers may reflect the Commission’s relative priorities
instead of a lack of legal authority to initiate such proceedings.
Thus, the Commission’s post-enactment enforcement inaction
is not particularly revealing of the pre-enactment intention of
the New Jersey Legislature.
In addition, none of the factual findings codified in
CREAMMA reveal a legislative intent to create a private
remedy for cannabis-related employment discrimination.

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Those findings address primarily law enforcement and public
health concerns. See N.J. Stat. § 24:6I-32(d)–(o). And the sole
finding with respect to employment pertains to the negative
effect a prior marijuana arrest may have on a person’s job
prospects. See id. § 24:6I-32(n). That expression of legislative
sympathy for the effects of prior marijuana arrests lends
support to CREAMMA’s employment protections, but even
that statement does not reveal a legislative intent to create a
private remedy for cannabis-related employment
discrimination.
Finally, the far stronger inference from the legislative
silence regarding a private remedy for cannabis-related
employment discrimination is that the Legislature did not
intend to provide one. Although New Jersey voters
overwhelmingly supported amending the state Constitution to
permit the legalization and regulation of marijuana, the
Legislature in enacting CREAMMA did not provide a remedy
for violating that statute’s cannabis-related employment
protections. Rather, CREAMMA stated expressly that its
cannabis-related provisions should not be construed to “amend
or affect in any way any State . . . law pertaining to
employment matters.” Id. § 24:6I-55(a). Against that
backdrop, the lack of an express remedy is better understood
as a deliberate choice not to provide a remedy rather than an
oversight of an intended remedy. See R.J. Gaydos, 773 A.2d
at 1142 (explaining that “New Jersey courts [are] reluctant to
infer a statutory private right of action”); Burns ex rel. Burns
v. Care One at Stanwick, LLC, 258 A.3d 368, 376 (N.J. Super.
Ct. App. Div. 2021) (explaining that courts “assume the
Legislature is ‘thoroughly conversant with its own legislation
and the judicial construction of its statutes’” (quoting Brewer
v. Porch, 249 A.2d 388, 391 (N.J. 1969))).
That conclusion is reinforced by the New Jersey
Legislature’s comparative responsiveness in enacting
safeguards against other forms of employment discrimination.
For instance, as originally enacted in 1945, New Jersey’s Law

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Against Discrimination prohibited employment discrimination
on the basis of “race, creed, color, and national origin or
ancestry” and provided an express private cause of action for
violations of those protections. N.J. Pub. L. No. 1945, ch. 169.
Since then, New Jersey has amended the statute nine times to
add fourteen protected classes. See N.J. Pub. L. No. 1962,
ch. 37 (liability for military service); N.J. Pub. L. No. 1970,
ch. 80 (marital status or sex); N.J. Pub. L. No. 1972, ch. 114
(physical disability); N.J. Pub. L. No. 1977, ch. 96
(nationality); N.J. Pub. L. No. 1981, ch. 185 (blood type and
hereditary cellular traits); N.J. Pub. L. No. 1992, ch. 146
(affectional or sexual orientation and familial status); N.J. Pub.
L. No. 1996, ch. 126 (genetic information); N.J. Pub. L.
No. 2006, ch. 100 (gender identity or expression); N.J. Pub. L.
No. 2013, ch. 220 (pregnancy). New Jersey separately created
causes of action for other forms of employment discrimination,
including discrimination based on tobacco use. See N.J. Stat.
§§ 34:6B-1, 34:6B-3 (authorizing a cause of action for
violations of the statutory prohibition on discrimination on the
basis of tobacco usage); see also id. §§ 34:19-3, 34:19-5
(creating a cause of action for violation of New Jersey
Conscientious Employee Protection Act, a whistleblower
statute); id. §§ 34:11-56.2, 34:11-56.8 (creating a cause of
action for violation of statute prohibiting gender-based pay
discrimination). But even with that statutory framework in
place and the repeated exercise of legislative willpower to
protect other classes, at no time – not even after the 2020
amendments to its Constitution – has New Jersey created an
express cause of action for employment discrimination based
on cannabis use. Accordingly, it is more likely that if the New
Jersey Legislature intended for CREAMMA to be privately
enforced, it would done so expressly, as it has in so many other
contexts, instead of “leav[ing] the matter to the happenstance
of future judicial construction.” R.J. Gaydos, 773 A.2d at 1144
(quoting Miller, 595 A.3d at 1108).
In sum, the second Cort factor is not satisfied here: there is
no express statement of a legislative intention to provide a

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private remedy for cannabis-related employment
discrimination, and the inferences from the legislative silence
weigh strongly against implying such an intention.
3. The Third Cort Factor: Advancing the
Principal Purposes of CREAMMA
The third Cort factor examines whether implying a private
cause of action would further “the underlying purpose of the
legislative scheme.” Cannon, 441 U.S. at 703; see also Cort,
422 U.S. at 84 (examining whether the requested remedy
would advance “the primary congressional goal”). Here, the
New Jersey Legislature memorialized the three underlying
purposes of CREAMMA in statutory text. See N.J. Stat.
§ 24:6I-32(a)–(c). Yet, as explained below, none of those is
furthered by implying a private cause of action for rescission
of a job offer based on a failed cannabis test.
The first underlying purpose of CREAMMA was to
regulate cannabis “in a similar fashion to the regulation of
alcohol for adults.” Id. § 24:6I-32(a). But New Jersey does
not provide a private cause of action for employment
discrimination based on the consumption or non-consumption
of alcohol. Thus, for parity with alcohol regulation, a private
remedy for loss of employment based on cannabis use should
not be inferred.
The second stated purpose for CREAMMA was to “prevent
the sale or distribution of cannabis to persons under 21 years
of age.” Id. § 24:6I-32(b). But implying a private remedy for
rescission of a job offer based on a failed cannabis drug test
does not advance that purpose.
The third principal purpose also counsels against
recognizing a private remedy for employment related cannabis
discrimination. As codified, that purpose was “to eliminate the
problems caused by the unregulated manufacturing,
distribution, and use of illegal marijuana within New Jersey.”
Id. § 24:6I-32(c). But implying a cause of action for positive

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cannabis use does not further that purpose, and it may actually
impede it. Were a cause of action to exist for a failed cannabis
test regardless of whether the cannabis used was legal or
illegal, courts would be protecting and compensating users of
illegal cannabis.
In sum, the third Cort factor provides no basis for inferring
a private remedy for CREAMMA’s cannabis-related
employment protections.
4. Balancing the Cort Factors
Ordinarily, once the Cort factors have been assessed
individually, they are weighed against each other to ascertain
whether a private remedy can be implied from a private
statutory right. See R.J. Gaydos, 773 A.2d at 1143 (instructing
courts to weigh Cort factors). But such balancing is not
necessary here because each of the Cort factors counsels
against implying a private remedy: (i) CREAMMA does not
specially benefit job applicants who fail cannabis drug tests;
(ii) there was not a legislative intent to imply a remedy for job
applicants who fail cannabis drug tests; and (iii) implying a
remedy for job applicants who fail cannabis drug tests is
inconsistent with CREAMMA’s stated purposes.13
13 In addition to each individual factor counseling against
implying a private remedy, their combined effect reinforces
this result. For instance, under Cort factor three, creating a
private right of action could perversely incentivize use of
unregulated cannabis. That fear comports well with the notion
that the Commission is responsible for enforcing
CREAMMA’s employment protections. As a state agency, the
Commission likely would not use its powers to vindicate the
employment rights of users of illegal cannabis. This mutually
reinforcing understanding of the Cort factors allows for the
enforcement powers Zanetich argues must exist, but without
the risk of perverse incentives that may arise from implying a

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26
As a final effort to validate his first count, Zanetich argues
that regardless of the Cort test, New Jersey courts readily imply
remedies for employment statutes. His argument rests on three
cases, but those provide little help. The only case decided by
the New Jersey Supreme Court, Lally v. Copygraphics,
428 A.2d 1317 (N.J. 1981) (per curiam), recognized a
common-law cause of action for a “retaliatory firing
attributable to the filing of a workers’ compensation claim,” id.
at 1318. The rationale for that ruling was that the New Jersey
workers’ compensation statute prohibits retaliatory firings, and
so there must be a remedy because “[i]f the Legislature had
wanted to foreclose a judicial cause of action, it would have
done so expressly.” Id. at 1318–19. That conclusion fits nicely
within the pre-Cort jurisprudence in which a right was
presumed to create a remedy. See, e.g., Marbury, 5 U.S.
(1 Cranch) at 163. Indeed, Lally was decided before New
Jersey adopted the modified Cort test. See In re State Comm’n
of Investigation, 527 A.2d at 852–54. But with New Jersey’s
subsequent adoption of a modified Cort test, the rationale of
Lally for implying a remedy has lost its force. See R.J. Gaydos,
773 A.2d at 1143.
The same can be said of Zanetich’s reliance on Peper v.
Princeton University Board of Trustees, 376 A.2d 535 (N.J.
Super. Ct. App. Div. 1977), rev’d, 389 A.2d 465 (N.J. 1978).
In that case, which was reversed on other grounds, the
Appellate Division of the Superior Court of New Jersey relied
on an unequivocal statutory mandate proscribing sex-based
employment discrimination to allow a claim to proceed in
court. Id. at 539–40. But Peper has no persuasive force
because it too precedes New Jersey’s adoption of the modified
Cort test.
The final case that Zanetich invokes, Winslow v. Corporate
Express, Inc., 834 A.2d 1037 (N.J. Super. Ct. App. Div. 2003),
private remedy for violations of CREAMMA’s employment
protections.

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27
is also distinguishable. The court in Winslow concluded that a
private cause of action could be implied for an employee and
against the employer for failure to provide updated notice of
the method for calculating the employee’s commission. Id. at
1042–43. But beyond citations to Lally and Peper, the only
authority that the court invoked for that proposition, Mulford
v. Computer Leasing, Inc., 759 A.2d 887 (N.J. Super. Ct. Law
Div. 1999), relied on two Cort factors – special benefit and
statutory purpose – albeit without attribution to Cort, id. at 891.
Thus, Mulford, and by extension Winslow, are best understood
as implicit applications of the modified Cort test, as opposed
to separate rules for an implied remedy in employment
disputes. And if doubts remained about New Jersey’s
dedication to Cort, they should have evaporated upon the New
Jersey Supreme Court’s subsequent reliance on the modified
Cort test. See Jarrell, 123 A.3d at 1029; R.J. Gaydos,
773 A.2d at 1143.
In sum, New Jersey remains committed to its modified Cort
test, and none of the factors under that test are met here.
Accordingly, the District Court did not err in dismissing
Count I of Zanetich’s claim.
B. New Jersey’s public policy exception to at-
will employment does not apply here.
Zanetich bases his second count on New Jersey’s common-
law public policy exception to at-will employment, first
recognized in Pierce v. Ortho Pharmaceutical Corp., 417 A.2d
505, 512 (N.J. 1980). For the reasons below, that exception
protects only employees – not job applicants – and thus it does
not encompass claims for failure to hire in violation of public
policy.
The New Jersey Supreme Court decided Pierce against the
backdrop of its common-law doctrine of at-will employment.
Under that doctrine, “in the absence of a contract, an employee
may be fired for any reason, be it good cause, no cause, or even
morally-wrong cause.” D’Agostino v. Johnson & Johnson,

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28
Inc., 628 A.2d 305, 311 (N.J. 1993). The plaintiff in Pierce
was an at-will employee who, as a medical doctor subject to
the Hippocratic Oath, expressed concerns about her
employer’s work on the development of a new drug because
one of the ingredients, saccharin, was controversial. See
Pierce, 417 A.2d at 507–08. While her constructive discharge
would have been permissible under the at-will employment
doctrine, the doctor sought an exception to permit a claim of
termination in violation of public policy. See id. at 508; see
also Tartaglia v. UBS PaineWebber Inc., 961 A.2d 1167, 1180
(N.J. 2008) (explaining that the claim in Pierce was “in the
nature of constructive discharge”).
In considering that modification to its common law, the
New Jersey Supreme Court acknowledged that employees,
especially those subject to ethical or professional codes of
conduct, may be duty-bound by those codes to refrain from
performing certain tasks. Pierce, 417 A.2d at 512. It then
weighed the employers’ interests in “knowing they can run
their businesses as they see fit as long as their conduct is
consistent with public policy” against the employees’ interest
in “knowing they will not be discharged for exercising their
legal rights” and the public’s interests in “employment
stability” and in “discouraging frivolous lawsuits by
dissatisfied employees.” Id. at 511. After balancing those
interests, the New Jersey Supreme Court created an exception
to its at-will employment doctrine to permit at-will employees
to bring claims in contract and tort for wrongful termination
when the termination resulted from the employee’s compliance
with an expressly stated “clear mandate of public policy.” Id.
at 512; cf. id. (emphasizing that the exception does not extend
to an employee’s refusal to perform work based on the
employee’s “personal morals”). In ultimately resolving the
dispute, however, the New Jersey Supreme Court determined
that the terminated doctor did not qualify for the exception
because “the Hippocratic Oath does not contain a clear
mandate of public policy that prevented [her] from continuing
her research on [the new drug].” Id. at 514.

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Over time, New Jersey courts have recognized other
violations of public policy that suffice for Pierce claims. See
Mehlman v. Mobil Oil Corp., 707 A.2d 1000, 1008–10
(N.J. 1998) (collecting cases); see also Ballinger v. Del. River
Port Auth., 800 A.2d 97, 109–10 (N.J. 2002). But each of
those instances has involved claims for wrongful termination
brought by former employees, not failure-to-hire claims
brought by job applicants.14 Thus, as articulated in Pierce, the
exception allows only claims by employees: “an employee has
a cause of action for wrongful discharge when the discharge is
contrary to a clear mandate of public policy.” Pierce, 417 A.2d
at 512 (emphasis added).
Finally, a federal court’s prediction of state law also
requires a sensitivity “to the doctrinal trends of the state . . .
and the policies which inform[ed] the prior adjudication[] by
the state courts.” Zamboni v. Stamler, 847 F.2d 73, 81 (3d Cir.
1988) (alterations in original) (quoting Becker v. Interstate
Props., 569 F.2d 1203, 1206 (3d Cir. 1977)). Even so, there is
no realistic likelihood that the New Jersey Supreme Court
would expand Pierce to permit failure-to-hire claims by
prospective employees. Any expansion of Pierce to cover
prospective employees would require a rebalancing of the
relevant interests. See MacDougall v. Weichert, 677 A.2d 162,
167 (N.J. 1996) (emphasizing that the Pierce exception was
recognized “only after balancing the interests of the employee,
the employer, and the public”); Hennessey v. Coastal Eagle
Point Oil Co., 609 A.2d 11, 20 (N.J. 1992) (“A ‘clear mandate
of public policy’ must be one that on balance is beneficial to
the public.”). Under such a rebalancing, at least one of the
interests that favored recognition of the Pierce exception – the
public’s interest in employment stability – would not be
present because preventing firings promotes employment
14 See, e.g., Ballinger, 800 A.2d at 109; Mehlman, 707 A.2d at
1001–02; Barratt v. Cushman & Wakefield of N.J., Inc.,
675 A.2d 1094, 1098 (N.J. 1996); Young v. Schering Corp.,
660 A.2d 1153, 1155 (N.J. 1995) (all current employees).

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stability while preventing the rescission of job offers does not.
In addition, on two occasions, New Jersey courts have
considered and rejected extending Pierce to failure-to-hire
claims. See Sabatino v. Saint Aloysius Par., 672 A.2d 217, 240
(N.J. Super. Ct. App. Div. 1996) (holding that the Pierce
exception did not extend to failure-to-hire claims brought by a
prospective employee); see also Lerner v. City of Jersey City,
2019 WL 1468735, at *4 (N.J. Super. Ct. Apr. 2, 2019)
(“[F]ailure to hire is not a cause of action that is recognized
under Pierce.” (citing Sabatino, 672 A.2d at 240)). On another
occasion, the New Jersey Supreme Court has declined to
extend Pierce claims to independent contractors for the same
reason: they lack the same interest in employment stability as
current employees. See MacDougall, 677 A.2d at 166
(“[Pierce] is designed to protect employees . . . . It does not
protect independent contractors[.]”).
For further perspective, federal courts have characterized
the Pierce exception as covering claims brought by employees
or former employees – not job applicants. See Conoshenti v.
Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 149 (3d Cir. 2004)
(“The Pierce doctrine is about wrongful discharge.”);
Lawrence v. Nat’l Westminster Bank of N.J., 98 F.3d 61, 73 (3d
Cir. 1996) (“[T]he paradigmatic dismissal giving rise to a
public policy cause of action is the termination of an employee
in retaliation for the employee’s refusal to act contrary to
public policy.”); cf. Zamboni, 847 F.2d at 82 (acknowledging
that the Pierce doctrine may apply to claims by employees
wrongfully demoted or suspended). And New Jersey courts
have favorably cited those cases for their interpretation of
Pierce. See, e.g., Mehlman, 707 A.2d at 1009 (citing Zamboni,
874 F.2d at 83); see also Cluney v. Mon-Oc Fed. Credit Union,
2006 WL 2128985, at *18 (N.J. Super. Ct. App. Div. 2006)
(citing Conoshenti, 364 F.3d at 148–50).
For these reasons, New Jersey has not permitted and likely
would not permit Zanetich to pursue a claim for failure-to-hire
in violation of public policy.

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C. Zanetich’s Remaining Challenges Lack
Merit.
Zanetich raises two additional arguments. He contends that
the District Court, upon dismissing his complaint, should have
allowed him to make curative amendments. He also seeks
certification of the two dispositive issues to the New Jersey
Supreme Court. Neither of those arguments succeeds.
1. The District Court Was Not
Required to Allow a Curative
Amendment.
Zanetich asserts that because this is a civil rights case, the
District Court was required to dismiss his complaint without
prejudice and allow an opportunity for curative amendment.
But this Court’s willingness to permit an opportunity for
curative amendment is limited to cases involving federally
recognized civil rights. See Fletcher-Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 251, 253 (3d Cir.
2007); Dist. Council 47, Am. Fed’n of State, Cnty. & Mun.
Emps. v. Bradley, 795 F.2d 310, 316 (3d Cir. 1986); but cf.
Iqbal, 556 U.S. at 687 (not requiring an opportunity to amend
in a dismissed federal civil rights case); Leatherman v. Tarrant
Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163,
168–69 (1993) (ruling that federal courts could not impose a
heightened pleading standard in conflict with the Federal Rules
of Civil Procedure for federal civil rights cases). And in this
case, Zanetich seeks to vindicate his civil rights under New
Jersey law, not federal law. Thus, the District Court was not
under an obligation to allow an opportunity for curative
amendment. See LabMD, Inc. v. Bobak, 47 F.4th 164, 192–93
(3d Cir. 2022) (explaining that the rule allowing an opportunity
for curative amendment does not apply outside the context of
a federal civil rights case).

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2. This Case Does Not Merit
Certification to the New Jersey
Supreme Court.
Zanetich also requests that the challenges to the viability of
both of his claims be certified to the New Jersey Supreme
Court. See 3d Cir. L.A.R. 110.1 (allowing certification of
questions to state supreme courts that allow such certification);
N.J. R. App. Prac. 2:12A-1 (permitting the New Jersey
Supreme Court to accept certified questions from the Third
Circuit). But certifying an issue to a state supreme court is an
act of judicial discretion, see 3d Cir. L.A.R. 110.1, and here
none of the common considerations associated with the
exercise of that discretion counsels strongly in favor of
certification.
One of those considerations is the likelihood of resolving
an uncertain legal issue. See United States v. Defreitas,
29 F.4th 135, 141 (3d Cir. 2022). But here, neither question
suffers from a high degree of uncertainty. For the first issue,
New Jersey unequivocally uses a modified Cort test for
ascertaining whether a state statute implies a private remedy,
see R.J. Gaydos, 773 A.2d at 1143, and application of that test
is straightforward. For the second issue, New Jersey state
courts have not indicated any willingness to extend the Pierce
exception to failure-to-hire claims by job applicants. See
Sabatino, 672 A.2d at 240. Thus, if instead of being removed
to federal court, this case would have remained in the New
Jersey court system, it is unlikely that the reasoning for the
decision or the outcome would be different. Accordingly, the
degree of uncertainty is not great enough to justify
certification.
Another common consideration in the certification decision
is the importance of the question to be certified. See Defreitas,
29 F.4th at 142. The issues here, however, do not involve
questions of state constitutional law, nor are they particularly
transcendental. The first question is one of statutory
construction localized to CREAMMA. The second issue seeks

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33
to allow a claim that has been the subject of very few,
seemingly only one, reported New Jersey state-court decision
in the past forty-plus years. See Sabatino, 672 A.2d at 240; cf.
Lerner, 2019 WL 1468735, at *4. For these reasons, if this
case would have remained in the state-court system, it is
unlikely that the New Jersey Supreme Court would exercise
discretionary jurisdiction over a petition to review either of the
two issues on which certification is sought. See N.J. Ct. R.
2:12-4 (explaining that review by Supreme Court of New
Jersey is granted only if the issue is of “general public
importance” or the appellate decision conflicts with other
precedent).
Considerations of judicial economy also disfavor
certification. See Defreitas, 29 F.4th at 142. The certification
process takes additional time. And that time would not be well
spent if the New Jersey Supreme Court declines certification.
But even if the New Jersey Supreme Court were to accept
certification, as helpful as its decision may be, it would likely
rest on principles that have been known for decades: New
Jersey uses a modified version of the Cort test, and New Jersey
courts have not exhibited any willingness to extend the Pierce
exception to include claims by job applicants. So, while
authoritative statements of state law are always welcome, it is
unnecessary to delay resolution of these issues in favor of the
possibility of certification, which does not appear to be an
efficient use of the time and other resources of the Justices of
the New Jersey Supreme Court.
V. CONCLUSION
For the foregoing reasons, we will affirm the District
Court’s judgment.

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1
FREEMAN, Circuit Judge, concurring in part and dissenting
in part.
In 2020, New Jersey citizens voted to amend their State
Constitution to legalize the recreational use of marijuana. The
month after that constitutional amendment took effect, the New
Jersey legislature enacted the Cannabis Regulatory,
Enforcement Assistance, and Marketplace Modernization Act
(CREAMMA). CREAMMA regulates marijuana
manufacture, sales, personal use, and consumer protections in
New Jersey. As relevant here, it prohibits employers from
refusing to hire job applicants solely due to their personal use
of marijuana. However, CREAMMA does not expressly
permit a prospective employee who is not hired because of
cannabis use to seek redress in court. In the absence of such
an express cause of action, we must determine whether the
statute contains an implied cause of action.
To do so, we apply New Jersey law. Because New
Jersey’s Supreme Court has not addressed this precise issue,
we must predict how it would rule. Fortunately, several New
Jersey authorities guide our path. Following that path, I predict
that the New Jersey Supreme Court would discern an implied
cause of action for failure to hire in violation of CREAMMA.
The District Court concluded otherwise, and the
majority of this Court does the same (albeit for different
reasons). I read the New Jersey authorities differently. At a
minimum, I would certify this question of law to the New
Jersey Supreme Court—the “most appropriate forum” to weigh
the public policy interests underlying CREAMMA’s
employment protections. See United States v. Defreitas, 29

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2
F.4th 135, 142 (3d Cir. 2022). Thus, I respectfully dissent from
Sections IV.A and IV.C.2 of the majority opinion.
Additionally, while I concur in the majority’s
conclusion that the District Court had diversity jurisdiction to
hear this case, I reach that conclusion without including
punitive damages in the amount in controversy. Walmart bears
the burden of proving jurisdiction. And, contrary to the
jurisdictional statements it made in its notice of removal,
Walmart now asserts that punitive damages are unavailable to
Zanetich as a matter of New Jersey law. Unsurprisingly,
Zanetich disagrees. But we need not resolve that dispute
because this matter satisfies the amount-in-controversy
requirement even without punitive damages. For the benefit of
future cases, I explain how I reach that conclusion where the
amount in controversy is based on a prospective employee’s
relatively modest hourly wage.
I
28 U.S.C. § 1332(a) restricts a federal district court’s
diversity jurisdiction to “civil actions where the matter in
controversy exceeds the sum or value of $75,000.” And
“federal diversity jurisdiction is generally determined based on
the circumstances prevailing at the time the suit was filed.”
Auto-Owners Ins. Co. v. Stevens & Ricci, Inc., 835 F.3d 388,
395 (3d Cir. 2016) (citation omitted); Angus v. Shiley Inc., 989
F.2d 142, 145 (3d Cir. 1993) (determining the amount in
controversy based on the allegations in a complaint that was
later removed to federal court).
When determining whether the amount in controversy
exceeds $75,000, the Court “generally accept[s] a party’s good

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3
faith allegation of the amount in controversy,” Columbia Gas
Trans. Corp. v. Tarbuck, 62 F.3d 538, 541 (3d Cir. 1995),
“unless it appears to a legal certainty that plaintiff was never
entitled to recover the jurisdictional amount,” Kaufman v.
Allstate, 561 F.3d 144, 151 (3d Cir. 2009). The “party who
urges jurisdiction on a federal court bears the burden of proving
that jurisdiction exists.” Boyer v. Snap-On Tools Corp., 913
F.2d 108, 111 (3d Cir. 1990).
This case began in June 2022 when Zanetich sued
Walmart in state court. He sought back pay, front pay, and
punitive damages for his alleged harms, but he did not specify
the amount in controversy.
Walmart removed the matter to federal court in
September 2022 and asserted federal jurisdiction based on the
parties’ diversity of citizenship. It in notice of removal, it
alleged that, together, Zanetich’s demands for front pay, back
pay, and punitive damages satisfy the amount-in-controversy
requirement. First, it calculated back pay of approximately
$24,000 as of the date of removal. (It relied on Zanetich’s offer
letter providing a start date of February 7, 2022, and a salary
of $19.85 per hour for a 40-hour work week.) Second, it stated
that Zanetich’s front-pay demand could exceed the amount of
back pay. By way of example, it stated that front pay
calculated for one year would exceed $41,000. Third, it
asserted that Zanetich’s demand for punitive damages placed
even more money in controversy, resulting in an amount over
$75,000.
Later, in a letter brief to us, Walmart argued that
punitive damages are unavailable to Zanetich. It invoked our
case law holding that punitive damages are not included in the

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4
amount-in-controversy analysis where they are “patently
frivolous and without foundation,” such as when “they are not
permitted under state substantive law.” Huber v. Taylor, 532
F.3d 237, 244 (3d Cir. 2008) (cleaned up). It also cited New
Jersey law stating that punitive damages are available only
where the plaintiff proves his harm was caused by actions the
defendant took with malice or wanton and willful disregard of
foreseeable harm. N.J. Stat. Ann. § 2A:15-5.12. According to
Walmart, nothing in Zanetich’s complaint plausibly satisfies
this standard.
For the purposes of our jurisdictional analysis, I accept
Walmart’s current position that punitive damages are
unavailable. But the amount in controversy plausibly exceeds
$75,000 based on back pay and front pay alone.
Although Auto-Owners guides us to assess the
circumstances “at the time of the complaint’s filing,” 835 F.3d
at 396, the back-pay calculation is not limited to lost wages that
had accrued through June 2022 when Zanetich filed his
complaint.1 Nor is that calculation limited to lost wages
through the date when Walmart removed this case to federal
court. See Angus, 989 F.2d at 145. Rather, we consider the
amount of back pay Zanetich plausibly could accrue between
his would-be start date at Walmart and a judgment in his favor.
See Foley v. Devaney, 528 F.2d 888, 889 n.1 (3d Cir. 1976)
(per curiam) (deeming the amount in controversy “to exceed
$10,000 although the claimed benefits do not yet total that
1 “Front pay refers to future lost wages accruing after a jury’s
verdict, whereas back pay refers to lost wages already accrued
as of that date.” Donelson v. Dupont Chambers Works, 20
A.3d 384, 388 n.9 (N.J. 2011).

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5
sum”) (citing Aetna Cas. & Surety Co. v. Flowers, 330 U.S.
464 (1947); Cuevas v. Wentworth Grp., No. A-3079-11T3,
2014 WL 4494166, at *23 (N.J. Super. Ct. App. Div. Sept. 15,
2014) (“Back pay is measured from the date of discharge to the
date of the verdict” (citing Gimello v. Agency Rent-A-Car Sys.,
594 A.2d 264, 279 (N.J. Super. Ct. App. Div. 1991))). We also
consider the front pay Zanetich plausibly could win if he
prevails. See Donelson, 20 A.3d at 388 n.9 (“[f]ront pay refers
to future lost wages accruing after a jury’s verdict”).2
On this record, and given the uncertain amount of time
for which Zanetich could be entitled to back and front pay, I
cannot say with legal certainty that the amount in controversy
from future damages was below § 1332(a)’s threshold when
Zanetich filed his complaint.
2 At least three of our sister circuits consider damages in this
same way when assessing the amount-in-controversy
requirement. See Chavez v. JP Morgan Chase & Co., 888 F.3d
413, 417 (9th Cir. 2018) (“If a plaintiff claims at the time of
removal that her termination caused her to lose future wages,
and if the law entitles her to recoup those future wages if she
prevails, then there is no question that future wages are ‘at
stake’ in the litigation. . . . That the amount in controversy is
assessed at the time of removal does not mean that the mere
futurity of certain classes of damages precludes them from
being part of the amount in controversy.”); Ashford v.
Aeroframe Servs., LLC, 96 F.4th 783, 797 n.8 (5th Cir. 2024)
(concluding that, “although past wages due may be negligible,
future lost wages [and] future benefits lost” can satisfy the
amount in controversy) (cleaned up); Andrews v. E.I. Du Pont
De Nemours & Co., 447 F.3d 510, 515 (7th Cir. 2006)
(including “lost wages (past and future)” when assessing the
amount in controversy).

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6
II
“Our role in diversity cases is to apply state law.”
Sheridan v. NGK Metals Corp., 609 F.3d 239, 253 (3d Cir.
2010). Because we lack “a definitive ruling” by the New
Jersey Supreme Court on the issue in this case, “we must
predict how that court would rule if faced with the issue.”
Meyer v. Cuna Mut. Ins. Soc., 648 F.3d 154, 164 (3d Cir. 2011)
(citation omitted). We make that prediction by “look[ing] to
decisions of state intermediate appellate courts . . . as well as
to analogous decisions, considered dicta, scholarly works, and
any other reliable data tending convincingly to show how the
highest court in the state would decide the issue at hand.” Id.
(cleaned up).
Although “New Jersey courts have been reluctant to
infer a statutory private right of action where the Legislature
has not expressly provided for such action,” they have an
established method for discerning when it is appropriate to do
so. R.J. Gaydos Ins. Agency, Inc. v. Nat’l Consumer Ins. Co.,
773 A.2d 1132, 1143 (N.J. 2001). They consider “whether: (1)
plaintiff is a member of the class for whose special benefit the
statute was enacted; (2) there is any evidence that the
Legislature intended to create a private right of action under
the statute; and (3) it is consistent with the underlying purposes
of the legislative scheme to infer the existence of such a
remedy.” Id. And when they weigh these factors, their
“primary goal has almost invariably been a search for the
underlying legislative intent.” Id. (citation omitted).
The New Jersey Supreme Court adopted these factors
from the United States Supreme Court’s decision in Cort v.
Ash, 422 U.S. 66 (1975). See R.J. Gaydos., 773 A.2d at 1143.

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7
As the majority opinion details, Cort no longer governs federal
law on implied causes of action. Maj. Op. at 13–16. Federal
courts instead look to the text and structure of the statute. Id.
at 15. But that is of no moment here because “the essence of
diversity jurisdiction is that a federal court enforces State law
and State policy.” DiAnoia Eatery, LLC v. Motorists Mut. Ins.
Co., 10 F.4th 192, 209 (3d Cir. 2021). Were it otherwise, we
would undermine the Erie doctrine, “which requires federal
courts to treat diversity claims so as to discourage forum
shopping and to reach results identical to the state courts.”
Edelson v. Soricelli, 610 F.2d 131, 135 (3d Cir. 1979).3
My examination of New Jersey authority leads me to
predict that the New Jersey Supreme Court would recognize an
implied private right of action for Zanetich to enforce
CREAMMA’s employment protections.
A. Factor One
New Jersey’s first implied-private-right-of-action factor
asks whether “plaintiff is a member of the class for whose
3 The District Court stated that its analysis of the implied-
private-right-of-action question “is guided by federal courts’
reluctance to interpret a state statute to create a private right of
action where a private right of action is not expressly stated in
the statute.” Zanetich v. Wal-Mart Stores East, Inc., No. 1:22-
cv-05387, 2023 WL 3644813, at *5 (D.N.J. May 25, 2023)
(emphasis added). But when exercising diversity jurisdiction,
federal courts have no more or less reluctance to find an
implied private right of action than the state’s courts have. We
must apply the relevant state’s substantive law with the goal of
rendering the judgment the state’s courts would have entered
but for the removal to federal court.

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8
special benefit the statute was enacted.” R. J. Gaydos, 773
A.2d at 1143. Here, Zanetich sued under CREAMMA’s
employment-protection provision. The relevant text states that
“[n]o employer shall refuse to hire or employ any person or
shall discharge from employment or take any adverse action
against any employee with respect to compensation, terms,
conditions, or other privileges of employment because that
person does or does not smoke, vape, aerosolize or otherwise
use cannabis items . . . .” N.J. Stat. Ann. § 24:6I-52(a)(1).4 So
it benefits any person who has suffered a refusal to hire or any
employee who has suffered an adverse employment action
because of use or nonuse of cannabis.
Zanetich alleges in his complaint that Walmart refused
to hire him due to his use of cannabis. Taking this well-pleaded
allegation as true, Zanetich is a member of the class for whose
special benefit the statute was enacted.
The majority concludes otherwise. It reasons that this
provision was not enacted to protect people like Zanetich
because it “protect[s] both users and non-users of cannabis,” so
it “sweeps very broadly, as every member of the public is either
a cannabis user or a cannabis non-user.” Maj. Op. at 18. But
that reasoning elides key language in the statute.
CREAMMA’s employment protection applies to any person
whom an employer “refuse[s] to hire or employ . . . or . . .
discharge[s] from employment or take[s] any adverse action
4 Elsewhere, CREAMMA clarifies that it does not prevent
employers from “maintain[ing] a drug-and alcohol-free
workplace or require an employer to permit or accommodate
the use” or consumption of cannabis “or intoxication by
employees during work hours.” N.J. Stat. Ann. § 24:6I-
52(b)(1)(a).

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9
against” because of cannabis use or nonuse. N.J. Stat. § 24:6I-
52(a)(1). That is a select class: it includes only people who
have been denied employment because of cannabis use or
nonuse, or whose employment has been adversely affected
because of cannabis use or nonuse. It does not include the
countless people whose cannabis use or nonuse has led to no
adverse effects on their employment or prospective
employment.
CREAMMA’s legislative history confirms that its
employment protection was intended to benefit a limited class
of people that includes Zanetich. See Jarrell v. Kaul, 123 A.3d
1022, 1030 (N.J. 2015) (consulting legislative history to
discern whether the legislature intended to imply a cause of
action). According to the New Jersey Assembly’s
Appropriations Committee, CREAMMA provides “consumer
and employee protections” designed for “individuals” who face
a “penalty in any manner, or deni[al of] any right or privilege,
including but not limited to . . . disciplinary action by a
business . . . solely for engaging in conduct with respect to
personal use cannabis activities as permitted under
[CREAMMA].” NJ Assemb. Approp. Comm. Statement,
220th Legislature, re A.B. No. 21, Jan. 22, 2021 (emphasis
added).
This conclusion is further supported by a New Jersey
appellate court decision. In Winslow v. Corporate Express,
Inc., New Jersey’s intermediate appellate court addressed
whether the state’s Wage Payment Law contains an implied
private cause of action. 834 A.2d 1037, 1043 (N.J. Super. Ct.
App. Div. 2003). That law required an employer to provide
notice before changing pay rates. Id. at 1041–42. The court
determined that “employees are the obvious special

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10
beneficiaries” of that law. Id. at 1043. It also noted that, in the
absence of an express cause of action, New Jersey “courts have
readily found an implied private right of action in statutes
enacted to protect employees from wrongful conduct by
employers.” Id. at 1043. As the majority rightly notes, the
Winslow court reached this conclusion through an “implicit
application[] of the modified Cort test,” as adopted by the New
Jersey Supreme Court. Maj. Op. at 27. And the class protected
by the Wage Payment Law in Winslow is broader than the class
protected by CREAMMA’s employment protection. See Maj.
Op. at 18–19 (opining that the class at issue here is too broad
to satisfy the first implied-private-cause-of-action factor).
Instead of relying on the numerous federal court
decisions discussed in the majority opinion, see Maj. Op. at
17–19, I am guided by the text of CREAMMA’s employment
provision and New Jersey authority. Those sources persuade
me that CREAMMA’s employment provision was created to
protect a class of people that includes Zanetich.
B. Factor Two
The second factor asks whether “there is any evidence
that the Legislature intended to create a private right of action
under the statute.” R.J. Gaydos, 773 A.2d at 1143. In seeking
the legislature’s intent, we must be mindful that the New Jersey
Supreme Court has found a “clear legislative intent to construe
CREAMMA and its companion bills broadly and robustly so
as to achieve their remedial purposes.” State v. Gomes, 288
A.3d 825, 841 (N.J. 2023); Young v. Schering Corp., 660 A.2d
1153, 1158 (N.J. 1995) (“Where the Legislature’s intent is
remedial, a court should construe a statute liberally”).

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11
On the same day that the legislature enacted
CREAMMA (including the employment protection at issue in
this case), it enacted a separate employment protection
forbidding any current or potential employer from making an
adverse employment decision based solely on an applicant’s
prior marijuana arrest, charge, conviction, or adjudication of
delinquency. N.J. Stat. Ann. § 34:6B-21 (hereafter “Prior
Marijuana Prosecution Law”). The legislature specified that
“nothing set forth in this section shall be construed” as
“authorizing a private cause of action by an aggrieved person”
alleging a violation of the Prior Marijuana Prosecution Law’s
employment protection. N.J. Stat. Ann. § 34:6B-21(c).
The legislature’s express foreclosure of a private cause
of action under the Prior Marijuana Prosecution Law—but not
for CREAMMA’s employment-protection provision enacted
that very day—is telling. It mirrors the circumstances in
Coleman v. Martinez, 254 A.3d 632 (N.J. 2021). Coleman
involved a New Jersey statute immunizing licensed clinical
social workers from suit. Id. at 647. When a non-clinical
social worker sought immunity under that statute, the New
Jersey Supreme Court observed that the legislature passed two
different statutes during the same legislative session: one
concerned clinical social workers and the other concerned non-
clinical social workers. Id. Based on the proximity of those
legislative actions, the court remarked, “[W]e assume that the
legislature knew precisely what it was doing when it” extended
immunity to one group and not the other. Id. “Indeed, statutes
that deal with the same matter or subject should be read in pari
materia and construed together as a unitary and harmonious
whole[,] . . . especially . . . when the statutes in question were
passed in the same session.” Id. (cleaned up). It concluded,
“Had the legislature intended to confer immunity on licensed

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12
social workers, it would have stated so, and if the failure to
provide immunity to social workers was an oversight, any
corrective measure must be taken by the Legislature.” Id.
Applying this principle here, I assume the legislature
knowingly foreclosed a private cause of action under the Prior
Marijuana Prosecution Law’s employment protections and
opted—on that same day—not to do so for CREAMMA’s
similar protections.
Further, when assessing whether the legislature implied
a cause of action, the New Jersey Supreme Court and Appellate
Division often invoke the principle that “[i]f the legislature had
wanted to foreclose a judicial cause of action, it would have
done so expressly.” Lally v. Copygraphics, 428 A.2d 1317,
1319 (N.J. 1981); Young v. Schering Corp., 660 A.2d 1153,
1159 (N.J. 1995) (quoting this statement from Lally in a
wrongful discharge case); Campione v. Adamar of New Jersey,
714 A.2d 299, 309 (N.J. 1998) (“The absence of any express
provision for a cause of action[,] . . . however, does not
necessarily mean that the Legislature intended that no such
actions should exist”); Boldt v. Corresp. Mgmt., Inc., 726 A.2d
975, 982 (N.J. Super. Ct. App. Div. 1999) (“If the Legislature
intended to foreclose plaintiffs . . . from seeking the relief
sought here, it would have explicitly limited the availability of
that remedy or relief.” (citing Lally, 428 A.2d 1317); Muise v.
GPU, Inc., 753 A.2d 116, 164 (N.J. Super. Ct. App. Div. 2000)
(holding “a court can consider all judicial remedies” and “a
legislative intent to defeat them will be inferred only if the
Legislature has explicitly limited the availability of that
remedy or relief” (citing Campione, 714 A.2d 299)).

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13
Even Walmart acknowledges that the New Jersey
Supreme Court “seemingly appl[ied] a presumption in favor of
implied causes of action” in Lally. Walmart Br. at 34. But
Walmart argues (and the majority agrees) that CREAMMA
lacks an implied private cause of action because the statute
contains other enforcement mechanisms, including potential
regulatory action by the Cannabis Regulatory Commission
(“CRC”). Id.; Maj. Op. at 21.
Granted, the New Jersey Supreme Court has stated that,
“[w]hen the Legislature has expressly created specific
remedies, a court should always hesitate to recognize another
unmentioned remedy.” Jarrell v. Kaul, 123 A.3d 1022, 1030
(N.J. 2015) (emphasis added). But I discern no express
specific remedy for violations of this CREAMMA
employment protection. As the majority acknowledges, the
CRC’s “jurisdiction, supervision, duties, functions, and powers
. . . extend to any person who buys, sells, cultivates, produces,
manufactures, transports, or delivers any cannabis or cannabis
items within this State.” N.J. Stat. Ann. § 24:6I-34(a).
Walmart participates in none of those activities. So the
legislature has not expressly empowered the CRC to remedy
Walmart’s violation of CREAMMA’s employment protection.
And although the CRC has the power “[t]o investigate and aid
in the prosecution of every violation of the statutory laws of
this State relating to cannabis,” N.J. Stat. Ann. § 24:6I-
34(b)(3), that power only extends within the CRC’s
jurisdiction, id. at 24:6I-34(b) (listing what “[t]he duties,
functions and powers of the commission shall include”).
Again, that jurisdiction does not extend to Walmart.
The CRC’s own interpretation of CREAMMA accords
with mine. The CRC explains its function as “writing and

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14
enforcing the regulations that direct the sales, purchases, and
business activities related to cannabis in New Jersey.”
Cannabis Regulatory Commission, Frequently Asked
Questions, available at https://perma.cc/M36U-GXLU. That
includes “impos[ing] fines or other sanctions on licensed
cannabis business[es] that violate regulations.” Id.5 But the
CRC “does not perform any law enforcement duties or regulate
unpermitted or unlicensed entities in any way[.]” Id. It is
undisputed that Walmart is not permitted or licensed to have a
cannabis business in New Jersey. Therefore, the CRC’s
position is that it does not enforce any laws against Walmart.
Because the New Jersey Supreme Court “places great weight
on the interpretation given to a statute by the agency charged
with its enforcement,” Clowes v. Terminix Intern., Inc., 538
A.2d 794, 803 (N.J. 1988), I cannot agree with the majority’s
view that the CRC’s powers to investigate and to aid
prosecution extend to Walmart’s employment actions.6
5 A licensed cannabis business is “a person or entity registered
to do business in New Jersey that holds a conditional or annual
cannabis business license or a testing laboratory license.” N.J.
Admin. Code § 17:30-1.2.
6 Even if the CRC’s jurisdiction extended to Walmart’s
conduct in this case, I disagree that this would end the inquiry
on the legislative-intent factor. See Maj. Op. at 20 (opining
that there is “near certainty” that New Jersey courts would
determine that the presence of an alternative enforcement
mechanism resolves the second factor). Although New Jersey
courts hesitate to recognize another unmentioned remedy, that
hesitation can yield to “strong indicia of a contrary legislative
intent.” Jarrell, 123 A.3d at 1030 (citation omitted). And New
Jersey courts have recognized implied private causes of action

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15
In sum, I view the legislative-intent factor in Zanetich’s
favor. This is consistent with the New Jersey Supreme Court’s
understanding of the “clear legislative intent to construe
CREAMMA and its companion bills broadly and robustly,”
Gomes, 288 A.3d at 841, and the legislature’s decision not to
foreclose a private right of action for CREAMMA’s
employment protections.
to enforce employment protections in statutes that expressly
permit administrative sanctions. See, e.g., Boldt, 726 A.2d at
982 (determining that, “[w]hile the Department [of Health]
retains the jurisdictional authority to sanction those that violate
the rule” at issue, plaintiffs had a private right of action to
enforce a regulation where they sought “money damages, a
remedy not available at the agency level”); Muise, 753 A.2d at
129 (“[A] court can consider all judicial remedies, including
damages, which are beyond the agency’s authority[.]”);
Mulford v. Computer Leasing, Inc., 759 A.2d 887, 891 (N.J.
Super. Ct. 2003) (discerning a private cause of action “as a
remedy in addition to the penal and administrative sanctions
and administrative wage collection proceedings, provided by
other sections thereof”).
The New Jersey Supreme Court has discerned no
legislative intent to authorize a private cause of action “in a
statutory scheme that already contains civil penalty
provisions,” R.J. Gaydos, 773 A.2d at 1145; where “a bare
criminal statute” contains “absolutely no indication that civil
enforcement of any kind was available to anyone,” In re State
Comm’n of Inv., 527 A.2d 851, 854 (N.J. 1987); and where a
statute contains an “elaborate regulatory scheme” for
controlling the target of the private suit, Campione, Inc., 714
A.2d at 310. None of those conditions is present here.

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16
C. Factor Three
The third factor asks whether “it is consistent with the
underlying purposes of the legislative scheme to infer the
existence of [a private] remedy.” R.J. Gaydos, 773 A.2d at
1143. I predict that the New Jersey Supreme Court would say
it is.
In enacting CREAMMA, the legislature sought to
“adopt a new approach to [New Jersey’s] marijuana policies by
controlling and legalizing . . . cannabis . . . for adults.” N.J.
Stat. Ann. § 24:6I-32(a). That control and legalization was
“designed to eliminate the problems caused by the unregulated
manufacturing, distribution, and use of illegal marijuana within
New Jersey,” id. § 24:6I-32(c), “in a way that enhances public
health and minimizes harm to New Jersey communities and
families,” id. § 24:6I-32(l). As Zanetich argues, New
Jerseyans will be less likely to access the lawful, controlled
system of cannabis sales the state has established if employers
can, without consequence, refuse to hire them for participating
in that system. This supports a conclusion that CREAMMA’s
broad remedial purposes are served by recognizing a private
right of action here. See Bortz v. Rammel, 376 A.2d 1261, 1266
(N.J. Super. Ct. App. Div. 1977) (determining that a private
right of action is consistent with the statutory goal of
“assur[ing] prospective and continuing compliance” with
construction codes); Parks v. Pep Boys, 659 A.2d 471, 478
(N.J. Super. Ct. App. Div. 1995) (concluding that a private
right of action helps “assure[] the . . . effectiveness” of a
“statute [that] requires certain conduct”); see also R.J. Gaydos,
773 A.2d at 1144 (citing Parks and Bortz as examples where
courts inferred private rights of action).

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D. Balance of Factors
After New Jersey courts consider the three implied-
private-right-of-action factors, they weigh these factors with
the primary goal of discerning the legislature’s intent. R.J.
Gaydos, 773 A.2d at 1143. In my view, each factor supports
Zanetich having an implied private right to enforce
CREAMMA’s employment protection. Thus, no weighing is
necessary. I predict that the New Jersey Supreme Court would
recognize this cause of action. I respectfully dissent from the
majority’s conclusion to the contrary.
III
As is now plain, the question in this case is whether
CREAMMA gives a prospective employee who is not hired
because of cannabis use a private right of action to sue his
would-be employer. The New Jersey Supreme Court is best
suited to answer that question, so I would certify the question
to that court.
Before our Court certifies a question of law to a state’s
highest court, we consider certain factors. One is whether “the
relevant question’s eventual resolution [is] unclear and
control[s] an issue in the case.” United States v. Defreitas, 29
F.4th 135, 142 (3d Cir. 2022). The question at issue here
controls whether Zanetich can proceed with his lawsuit. And
the various opinions in Zanetich’s case demonstrate that the
eventual resolution of this question is debatable.
The majority and I would resolve the question
differently. The majority’s reasoning also differs from the

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District Court’s. See Zanetich, 2023 WL 3644813, at *5
(determining that “the First Cort factor weighs in favor of
finding an implied cause of action”).7 And the New Jersey
legal authorities seem to contradict each other in ways material
to the question before us. Compare Miller v. Zoby, 595 A.2d
1104, 1108 (N.J. Super. Ct. App. Div. 1991) (“the fact that no
general cause of action . . . has been created is to us some
reliable evidence that the legislature neither intended to create
such a cause of action by silence or desired the judiciary to
create one by implication”), with Boldt, 726 A.2d at 982 (“If
the Legislature intended to foreclose plaintiffs . . . from seeking
the relief sought here, it would have explicitly limited the
availability of that remedy or relief.”). This counsels in favor
of certification.
Another factor is the importance of the question to be
certified.8 Defreitas, 29 F.4th at 142. For instance, when a
question involves important public policy choices or value
judgments, a state’s high court is the appropriate tribunal. See
id. Additionally, when an issue is likely to recur, it “should be
certified for an immediate and dispositive resolution.” Id.
7 The District Court also posited that we might find the
question in this case suitable for certification to the New Jersey
Supreme Court. Zanetich, 2023 WL 3644813, at *10 n.4.
8 The majority observes that this case does not involve
questions of state constitutional law and the issues are not
“particularly transcendental.” Maj. Op. at 32. When we
consider certification, it is proper to consider whether the
question is one of state constitutional law. Defreitas, 29 F.4th
at 142. However, transcendentalism—however that term may
be defined—is beyond our ken.

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The importance factor also counsels in favor of
certification. Zanetich’s case arises in the wake of a watershed
statewide referendum in which New Jerseyans opted to
legalize the personal use of marijuana by adults. Effectuating
the will of the voters required the legislature to balance private
and administrative enforcement mechanisms. The New Jersey
Supreme Court—not this Court—should resolve the
ambiguities about how the legislature conducted that
balancing. Permitting the state high court to do so would
support cooperative judicial federalism. See id.
This issue is also likely to recur. For decades, New
Jersey employers have administered drug tests as a condition
of employment in jobs as varied as salespeople, law
enforcement officers, funeral home directors, and custodians.9
Given the sheer number of employment relationships
potentially impacted by CREAMMA’s employment
protections, the issue in this case is likely to arise again.
A third factor is the timeliness of the request for
certification. Defreitas, 29 F.4th at 142. Zanetich filed his
action in state court, where he could have appealed an adverse
ruling to a New Jersey appellate court. Zanetich could not seek
certification immediately after Walmart removed the action to
federal court. See N.J. Ct. R. 2:12A–1 (permitting submissions
9 See Jevic v. Coca Cola Bottling Co. of New York, No. CIV.
A. 89-4431, 1990 WL 109851 (D.N.J. June 6, 1990)
(salesperson); Policemen’s Benev. Ass’n of New Jersey, Loc.
318 v. Washington Twp. (Gloucester Cnty.), 850 F.2d 133 (3d
Cir. 1988) (police officers); Wild v. Carriage Funeral
Holdings, Inc., 227 A.3d 1206 (N.J. 2020) (funeral director);
Small v. Rahway Bd. of Educ., No. CV 17-1963, 2018 WL
615677 (D.N.J. Jan. 26, 2018) (custodian).

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of certified questions of law from this Court but not from
federal district courts). He sought certification at his first
opportunity to do so—in his brief to this Court.
For all these reasons, I would certify the question of law
in this case to the New Jersey Supreme Court.

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